California Department of Public Health Prohibits CBD in Food Products

By Orion Inskip, Attorney at Gleam Law PLLC

According to a recent FAQ released by the California Department of Public Health’s Food & Drug Branch (CDPH-FDB), CBD is prohibited from use in any food product sold outside of the legal cannabis industry in the state. “Food products” is defined as any article used for food, drink, confection, condiment, chewing gum, and pet food.

The statement by CDPH-FDB does not affect or impact licensed cannabis dispensaries or producers selling food products infused with cannabis-derived CBD.

It does, however, deal a major blow to companies infusing food products with hemp-based CBD, a trend that has gained steam at natural grocery stores and high-end cafes. This clarification also makes pet CBD products, made by any source that is not licensed to sell cannabis by the state of California, illegal.

The statement, released July 6th, 2018, was in response to “numerous inquiries from food processors and retailers who are interested in using industrial hemp-derived cannabidiol (CBD) oil or CBD products in food since the legalization of medicinal and adult-use marijuana (cannabis) in California.”

According to the statement, the CDPH-FDB prohibits the following ingredients from being added to food products:

  • CBD products derived from cannabis (sold outside of legal and regulated dispensaries)
  • CBD products derived from industrial hemp, including CBD oil
  • Hemp oil that is not derived from industrial hemp seeds
  • Industrial hemp seed oil that has been enhanced with CBD, THC, or other cannabinoids

When explaining their reasoning for the clarification, the CDPH-FDB cites the federal Agricultural Act of 2014, also known as the Farm Bill. Among many provisions, the Farm Bill legalizes the cultivation of industrial hemp by state agricultural departments in the name of research. It did not, however, legalize the use of industrial hemp (or its byproducts) for human consumption. The Food & Drug Administration has yet to approve CBD as an approved food, food ingredient, or supplement. Therefore, it is not allowed in food for human or pet consumption.

We fully expect the industry to challenge this prohibition on the grounds that the CDPH-FDB prohibition violates the Congressional prohibition against using federal funds to interfere with the growing, processing, transporting, or sale of industrial hemp grown under a state industrial hemp pilot program. Congress has included this prohibition in every budget since passage of the 2014 Farm Bill and includes a prohibition against the use of funds to interfere either in the state with the pilot program or in any other state.

This is just one more part of an ongoing legal gray area where CBD is concerned. You can read our full exploration of the legality of CBD in our article titled, “Is CBD Legal? The Complicated World of Hemp & Cannabis CBD”.